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Second Circuit’s “plain error” standard struck down in Marcus

Below, Stanford Law School’s Priyanka Rajagopalan recaps the opinion handed down yesterday in United States v. Marcus.  (In February, Jesenka Mrdjenovic of Harvard Law School previewed and recapped the oral arguments in the case for SCOTUSblog.)  Check the United States v. Marcus (08-1341) SCOTUSwiki page for further information.

Yesterday, the Court issued its decision in United States v. Marcus (No. 08–1341).  At issue in the case was whether the Second Circuit’s plain-error standard of review for ex post facto violations was consistent with the Court’s interpretation of Federal Rule of Criminal Procedure 52(b). In an opinion by Justice Breyer that was joined by six other Justices, the Court held that it was not, reversing and remanding the case to the court of appeals.  Justice Stevens wrote a dissenting opinion, while Justice Sotomayor – who was a member of the Second Circuit panel that heard the case below – took no part in the decision.

Respondent Glenn Marcus was indicted and convicted of forced labor and sex trafficking in 2001 under the Trafficking Victims Protection Act of 2000 (TVPA), which came into effect in October 2000.  Both of Marcus’s convictions arose from (and the prosecution presented evidence regarding) conduct that began in 1998 and ended in 2001.  On appeal, Marcus argued for the first time that the jury should have been instructed that his conduct before the TVPA’s enactment was not unlawful; the court’s failure to do so, he contended, violated the Ex Post Facto Clause, because there was a possibility that the jury had convicted him based solely on that pre-enactment conduct.  The Second Circuit agreed and vacated Marcus’s conviction.  Employing its standard “plain error” analysis under Federal Rule of Criminal Procedure 52(b), it concluded that the Ex Post Facto Clause had indeed been violated because there was a possibility, however small, that Marcus had been convicted based only on conduct which predated the enactment of the TVPA.

The government filed a petition for certiorari, which the Court granted.  In its opinion, the Court held that the Second Circuit’s decision, and its plain-error analysis, conflicted with the Court’s prior decisions interpreting Rule 52(b), such as Johnson v. United States (1997) and United States v. Olano (1993).  Those cases, the Court reiterated, make clear that an appellate court may correct an error that was not raised at trial only when four conditions are met:  (1) there must be an error; (2) the error must be clear or obvious, rather than subject to reasonable dispute, (3) the error must affect the appellant’s substantial rights, typically by affecting the outcome at trial, and (4) it must seriously affect the fairness, integrity or public reputation of judicial proceedings.

The Court acknowledged that the trial court erred when it failed to instruct the jury as to the lawfulness of Marcus’s pre-TVPA conduct, and it recognized the risk of a conviction based solely on pre-enactment behavior.  It nevertheless held, however, that the Second Circuit’s plain-error standard was inconsistent with both the third and fourth criteria in the Court’s four-part analysis. First, the third prong of the test, ordinarily requiring a showing of prejudice – or reasonable probability that the error had influenced the outcome of the trial – could not be reconciled with the Second Circuit’s willingness to set aside a conviction as long as the defendant could show any probability that the jury could have convicted the defendant based exclusively on conduct predating the statute’s enactment.  Noting that errors creating the risk of a conviction based solely on noncriminal conduct could vary greatly in scope and severity, the Court stressed that the Second Circuit’s very lenient standard for vacating a conviction on the basis of such an error would be patently unreasonable and inadequate to properly address the vastly different varieties of this error.  In so holding, the Court thus rejected Marcus’s argument that any such error based on a violation of the Ex Post Facto clause should warrant reversal of the conviction without having to meet the threshold standard of showing prejudice.

Moreover, the Court explained, the Second Circuit’s plain-error review was at odds with the fourth prong of the Court’s test.  Focusing on the Second Circuit’s willingness to vacate a conviction based on “any possibility, no matter how unlikely,” that the jury’s verdict was based solely on pre-enactment conduct, the Court concluded that this standard would lead to reversals even when the error did not significantly undermine the “fairness, integrity or public reputation” of the judicial process.  The Court thus remanded the case to the Second Circuit for it to properly apply the four-part Johnson and Olano test, with particular emphasis on ensuring that the third and fourth criteria of the test were satisfied.

In his dissent, Justice Stevens disputed the majority’s characterization of Rule 52(b)’s requirements for appellate review of convictions.  Specifically, he objected to the majority’s skepticism about the effect of the trial error on Marcus’s substantial rights.  In his view, the trial error was a significant one that created two risks: first, that the jury had convicted Marcus purely on the basis of his pre-TVPA conduct, and second, that Marcus’s convictions stemmed from the jury’s incorrect belief that his pre-TVPA conduct was unlawful.  Thus, although he acknowledged that the Second Circuit had taken a novel approach to reviewing Marcus’s convictions under Rule 52(b), Justice Stevens maintained that the appellate court’s decision nonetheless satisfied both the third and fourth prongs of the Court’s established plain-error test, and that its judgment should be affirmed.